Minister for Immigration Local Government and Ethnic Affairs v Taveli

(1990) 23 FCR 162

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(Judgment by: Davies J)

Minister for Immigration Local Government and Ethnic Affairs
vTaveli

Court:

Judges:
Davies JFrench J
Hill J

Legislative References:
Ombudsman Act 1976 (NSW) - The Act
Freedom of Information Act 1982 (NSW) - The Act
Administrative Decisions (Judicial Review) Act 1977 - s 5(2)(b); s 13; s 16(1)
Administrative Appeals Tribunal Act 1975 - s 28
AAT Act - s 43
Broadcasting Act 1942 (NSW) - s 40B(1)(d)
Migration Act 1958 - The Act
Evidence Act 1905 - Pt IIIA
Civil Evidence Act 1968 - The Act
Commonwealth Evidence Act 1905 - s 7B
Tribunals and Enquiries Act 1958 - The Act

Case References:
Williams v Lloyd - (1933-4) 50 CLR 341
Sezdirmezoglu v Minister for Immigration and Ethnic Affairs - (1983) 51 ALR 561
Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs - (1983) 51 ALR 561
Sezdirmezoglu and Anor v Acting Minister for Immigration and Ethnic Affair - (1983) 51 ALR 561
Ridge v Baldwin - (1964) AC 40
R v Waltham Forest LBC ex parte Baxter - (1988) 2 WLR 407
R v Supplementary Benefits Commission ex parte Singer - (1973) 1 WLR 713
R v Southamptom Justices ex parte Green - (1976) 1 QB 11
R v Northumberland Compensation Appeals Tribunal, Ex parte Shaw - (1952) 1 KB 338
R v Home Secretary ex parte Khawaja - (1984) AC 74
R v District court of Queensland Ex parte Thompson - (1968) 118 CLR 488
Public Service Board of New South Wales v Osmond - (1986) 159 CLR 656
Public Service Board of NSW v Osmond - (1986) 159 CLR 656
Park Oh Ho v Minister for Immigration and Ethnic Affairs - (1989) 64 ALJR 34
O'Reilly v Mackman - (1983) 2 AC 237
O'Reilly v Mackman - (1983) 2 AC 237
Minister for Immigration and Ethnic Affairs v Arslan - (1984) 55 ALR 361
Minister for Immigration and Ethnic Affairs and Anor v Arslan and Anor - (1984) 55 ALR 361
Lutterell v Reynell - (1671) 1 Mod 282; 2 Hawk PC 431
Kioa v West - (1985) 159 CLR 550
Iveagh v Minister of Housing and Local Government - (1964) 1 QB 395
Givaudan and Co Ltd v Minister of Housing and Local Government - (1967) 1 WLR 400
George v Secretary of State for the Environment - (1979) 77 LGR 689
Edwards v Bairstow - (1956) AC 14
Dalton v Deputy Commissioner of Taxation (NSW) - (1985) 7 FCR 382
Burns v Australian National University - (1982) 40 ALR 707
Baldwin and Francis Ltd v Patents Appeal Tribunal and Ors - (1959) AC 663
Baldwin and Francis Ltd v Patents Appeal Tribunal - (1959) AC 663
Atra v Farmers' and Graziers' Co-Op Co Ltd - (1986) 5 NSWLR 281
Ansett Transport Industries (Operations) Ltd v Secretary Department of Aviation - (1987) 73 ALR 193
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation - (1983) 1 NSWLR 1
Adelaide Chemical and Fertilizer Co Ltd v Carlyle - (1940) 64 CLR 514
ARM Constructions Pty Ltd v Deputy Commissioner of Taxation - (1986) 65 ALR 343

Hearing date:
Judgment date: 31 May 1990

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Judgment by:
Davies J

I have had an opportunity to read the reasons for judgment prepared by French J. His Honour has dealt fully with the facts of the case and I adopt his Honour's comments thereon.

There are two issues, first whether the learned trial judge was in error in rejecting a tender by counsel for the Minister of what was described as "a s 13 statement" and, secondly, whether the trial Judge was in error in setting aside the decisions under review "as from the date of those decisions".

Because an application for a writ of certiorari involved the consideration of the legality of a decision having regard solely to the material set out in "the record", courts from time to time rejected evidence as to the reasons lying behind the challenged decision. See eg Baldwin and Francis Ltd v Patents Appeal Tribunal and Ors (1959) AC 663 at pp 678-9. As Denning LJ pointed out in R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952) 1 KB 338 at p 352, the view was that the record had to set out the adjudication but need not set out the reasons therefor nor the evidence. The reasons for decision did not form part of the record unless the decision-making tribunal had chosen to incorporate them. In later cases, it was nevertheless found convenient to tender affidavits which raised a point of law for the determination of the court. Denning LJ said, at p 353, that the explanation was that the affidavits were treated by consent as if they were part of the record. Over the years, a more flexible approach evolved. See, eg, R v Southamptom Justices; ex parte Green (1976) 1 QB 11. In R v Supplementary Benefits Commission; ex parte Singer (1973) 1 WLR 713, the reasons for decision set out in a letter communicating the decision were treated as part of the record.

In this country, the Commonwealth administrative law package, comprising the Administrative Appeals Tribunal Act 1975 (NSW) ("the AAT Act") and the Ombudsman Act 1976 (NSW), the Administrative Decisions (Judicial Review) Act 1977 (NSW) ("the ADJR Act") and the Freedom of Information Act 1982 (NSW), placed emphasis upon the reasoning process lying behind a decision. The ADJR Act specifically removed the requirement that the error appear on the record of the decision. The legislative package emphasised the need for reasoned decision-making and made available to affected persons means of ascertaining what the reasons for a decision had been. For our purposes, it is sufficient to refer to s 13(1) of the ADJR Act which provides:

Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

See the exposition of this provision by Ellicott J in Burns v Australian National University (1982) 40 ALR 707 at pp 710-712, 716.

On the basis that the reasons for a challenged decision could ordinarily be obtained, s 5 of the ADJR Act appropriately expressed as grounds of review that the decision taken involved an error of law, that an irrelevant consideration was taken into account, that there was a failure to take into account a relevant consideration, that the power was exercised for a purpose other than that for which it was conferred and so on. Such grounds could be effective grounds of challenge when there was a ready means of ascertaining what had been taken into account in making the decision under challenge. Section 13 of the ADJR Act did not impose an obligation upon a decision-maker to give reasons at the time the decision was made. It simply provided a means by which a person affected could subsequently obtain from the decision-maker a statement of the reasons. The Freedom of Information Act ("the FOI Act") assisted this disclosure by enabling access to be obtained to documents in the possession of a department or a prescribed authority of the Commonwealth.

The Federal Court of Australia has exclusive jurisdiction to hear applications under the ADJR Act and O 54 of the Federal Court Rules deals specifically with them. Rule 1 applies the general rules of court. Rule 2 specifies the form of application. Rule 3 reads:

(1)

On the filing of an application for an order of review or as soon afterwards as is practicable, the applicant shall file copies of such of the following documents as are in his possession --

(a)

a statement of the terms of the decision the subject of the application; and

(b)

a statement with respect to that decision furnished to the applicant pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 or section 28 of the Administrative Appeals Tribunal Act 1975, or any other statement furnished by or on behalf of the person who made the decision purporting to set out findings of facts or a reference to the evidence or other material on which those findings were based or the reaons for making the decision, unless a copy of that document has been filed previously in the proceeding.

Rule 4 deals with objections to competency to an application. Rule 5 provides that the court may give directions as to the serving of a copy of the application upon the Attorney-General and for the giving of notice of the application to such persons or classes of persons as the court directs. Rule 6 provides for applications to dismiss the application on the basis, eg, that no reasonable basis for the application is disclosed. Rule 7 provides that persons seeking dismissal of the application on a discretionary ground should apply promptly for such dismissal. Rule 8, introduced by Statutory Rule 50 of 1989, provides:

Notwithstanding Order 14 rule 9, the Court may dispense with the attendance for cross-examination of a person making an affidavit and may direct that an affidavit be used without the person making the affidavit being cross-examined thereon.

In the hearing before the trial Judge, counsel for the Minister sought to tender what he described as "a s 13 statement". His Honour rejected the tender.

I do not read O 54, r 3 as dealing with any issue as to admissibility of such a statement at the trial. The rule does not say that. As the rule provides for the filing of a document, I take it that a judge may look at any document filed for an appropriate purpose, such as the management of the case prior to trial. A perusal of the decision and of any reasons that have been filed pursuant to r 3 will enable a judge the better to give directions for the conduct of the proceedings, whether they be on pleadings or by affidavit or by oral evidence, whether notice should be given to the Attorney-General or to any other party, to determine whether the decision was of a nature susceptible of review under the ADJR Act, to decide whether another avenue of review, eg review by the Administrative Appeals Tribunal, was available and more appropriate and so on. The rule is thus facultative.

The only rule in O 54 which deals with trial is r 8 which provides that the court may dispense with attendance for cross-examination and may permit an affidavit to be used although the deponent be not cross-examined. This rule was introduced by Statutory Rule 50 of 1989 to direct attention to the matters which are usually of critical importance in judicial review proceedings, namely, the material that was or ought to have been before the decision-maker when the decision was made, the reasoning process of the decision-maker having regard to those materials and the object and terms of the power to be exercised. Prior to the introduction of the rule, it was common practice for counsel for respondent decision-makers to cross-examine applicants and their witnesses on matters which, if relevant at all, were peripheral to the issues to be resolved and which had relevance only as background information explanatory of the context in which the challenged decision was made. At the same time, it was common for counsel for applicants to insist upon the attendance for cross-examination of busy decision-makers and to cross-examine at length with a view to demonstrating errors in the reasons stated. Such cross-examination was rarely effective and reflected rather the inclination of counsel to base proceedings on oral evidence. Judicial Review proceedings, like appeals from the Administrative Review Tribunal on points of law, can be and are frequently better dealt with on the papers, that is to say, having regard to the relevant legislation, to the material that was or ought to have been before the decision-maker and to the reasons for decision stated in writing by the decision-maker.

In the United Kingdom, the practice is that cross-examination of deponents is not permitted without leave. And that leave is granted frugally. In George v Secretary of State for the Environment (1979) 77 LGR 689, Lord Denning MR laid it down that it would be only on rare occasions that the interests of justice would require that leave be given for cross-examination. More recently, in O'Reilly v Mackman (1983) 2 AC 237 at pp 282-3, Lord Diplock enunciated the rule in more liberal terms. After referring to Lord Denning's observations, Lord Diplock said:

The facts, except where the claim that a decision was invalid on the ground that the statutory tribunal or public authority that made the decision failed to comply with the procedure prescribed by the legislation under which it was acting or failed to observe the fundamental rules of natural justice or fairness, can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercie of its supervisory powers except on the principles laid down in Edwards v Bairstow (1956) AC 14, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament. Nevertheless having regard to a possible misunderstanding of what was said by Geoffrey Lane LJ in Reg v. Board of Visitors of Hull Prison, Ex parte St. Germain (No 2) (1979) 1 WLR 1401, 1410 your Lordships may think this an appropriate occasion on which to emphasise that whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires.

Notwithstanding his Lordship's observations, cross-examination of deponents in judicial review proceedings is not common in the United Kingdom. A recent example where cross-examination was allowed is R v Waltham Forest LBC; ex parte Baxter (1988) 2 WLR 407.

As Lord Diplock's speech indicates, in a decision to permit or to refuse cross-examination of a deponent, policy issues may be taken into account. Cross-examination may divert the court's attention away from a strict examination of the materials which ought to have been taken into account by the decision-maker and the decision-maker's examination thereof towards a consideration by the court itself of the facts and merits of the case. Matters of convenience are also taken into account. As Lord Bridge said in R v Home Secretary; ex parte Khawaja (1984) AC 74 at pp 124-5:

I understand all your Lordships to be agreed that nothing said in the present case should be construed as a charter to alleged illegal entrants who challenge their detention and proposed removal to demand the attendance of deponents to affidavits for cross-examination.

Whether to permit cross-examination will remain a matter for the court in its discretion to decide. It may be that the express discretion conferred on the court to permit cross-examination by the new procedure for judicial review under RSC, Ord.53 has been too sparingly exercised when deponents could readily attend court. But however that may be, the discretion to allow cross-examination should only be exercised when justice so demands. The cases will be rare when it will be essential, in the interests of justice, to require the attendance for cross-examination of a deponent from overseas. If the alleged illegal entrant applying for habeas corpus, certiorari or both, files an affidavit putting in issue the primary facts alleged against him he will himself be readily available for cross-examination, which should enable the court in the great majority of cases to decide whether or not he is a witness of truth. If he is believed, he will succeed in his application. If he is disbelieved, there will be nothing to stop the court relying on affidavit evidence, provided it is inherently credible and convincing, to prove the fraud alleged against him, even though it has not been tested by cross-examination.

In this country also, the same considerations apply. It would be inconvenient if, the decision-maker being a Minister, the head of a department or a busy senior official, an affidavit from the decision-maker setting out relevant facts could not be received without requiring the deponent to attend for cross-examination unless reasons for cross-examination were shown.

The submission made to the trial Judge was that a document said to be a s 13 statement should be received in evidence though it was not verified on affidavit and the maker was not subject to cross-examination. His Honour rejected the tender of the document on the basis that, not being verified, the statement was a self-serving document and that, in any event, there had been a direction that the evidence to be adduced at the trial be on affidavit.

In the appeal, counsel for the Minister submitted that there were policy reasons why the statement should have been received. He submitted that it was not in the public interest that decision-makers such as Ministers and heads of departments should be placed in the position whereby, if they wished to support their decision, they must swear an affidavit thus rendering themselves liable to cross-examination. On these policy aspects, it is sufficient to point out that r 8 of O 54 now deals with them by conferring a discretion upon the court to receive an affidavit notwithstanding that the deponent does not attend for cross-examination.

The document which counsel tendered was tendered merely on the footing that it was a s 13 statement. For the purposes of the appeal, it has been received and marked as an exhibit. It appears that the subject decisions were taken on 28 November 1988 and that a statement was subsequently requested under s 13 of the ADJR Act and was signed on 30 December 1988. The decisions themselves were not accompanied by a statement of the decision-maker's reasons and no reasons for decision were stated orally or in writing at that time, save that the report and recommendations which went to Mr Luu for his consideration concluded and were endorsed by Mr Luu as follows:

My decisions in respect of Mr and Mrs Fakaosi are as follows:

resident status not approved voluntary departure not approved Deportation ordered allocation to Government funds approved

The report and recommendations as so endorsed are not the document which was tendered as the s 13 statement.

Any statement of reasons which under earlier law would have been received in evidence as part of the record of the challenged decision would be admissible in evidence if tendered by the person affected by the decision or by the decision-maker. Such a statement of reasons would be part of the res gestae, a part of the decision-making process. I would accept that, in these present days, in every instance where the decision-making power required the decision-maker to state reasons for decision, whether at the time the making of the decision or on request thereafter, eg s 43 of the AAT Act and s 40B(1)(d) of the Broadcasting Act 1942 (NSW), the statement of reasons so delivered would be admissible in evidence, when tendered by either party, as forming part of the decision-making process empowered by the legislation. Just as the reasons which accompany a judicial decision are received as the reasons for the decision, reasons which accompany an administrative decision are evidence of the reasoning process behind that decision.

An unverified statement of reasons which does not fall into this category will be admissible by consent or under any of the ordinary rules of evidence as an admission against the decision-maker or as a business record and so on. However, the tender of the statement of reasons before the trial Judge was not founded upon any rule of evidence.

As Lord Blackburn said in the Dysart Peerage Case (1881) 6 App Cas 489 at p 503:

In England hearsay evidence, that is to say the evidence of a man who is not produced in Court and who therefore cannot be cross-examined, as a general rule is not admissible at all.

See also Wigmore on Evidence, 3rd Ed, para 1362.

It has been the practice of this court not to receive such a statement, unverified, unless a ground of admissibility is established. It is true that in Sezdirmezoglu and Anor v Acting Minister for Immigration and Ethnic Affair (1983) 51 ALR 561 at p 570, Smithers J said:

... I take the view that the statement of reasons provided by the Minister, unless effectively challenged, are evidence of the reasons for his decision.

However, the report of the case does not show by whom the statement was tendered or whether there was an objection to the tender. The decision to which his Honour referred, Givaudin and Co Ltd v Minister of Housing and Local Government (1967) 1 WLR 400, was a case where the legislation conferring the decision-making power required the decision-maker to "notify his decisions and his reasons therefor in writing". As I have already said, in such a case, such reasons are part of the record, of the res gestae, and are admissible as such. The practice expressed by Smithers J was not adopted by Sweeney, St John and Morling JJ in Minister for Immigration and Ethnic Affairs and Anor v Arslan and Anor (1984) 55 ALR 361 at p 363.

For these reasons, I am of the view that the trial Judge was correct in rejecting the tender.

I now turn to the second issue in the appeal. His Honour set aside the decisions under review "as from the date of those decisions", an order having the effect that the decisions were a nullity and, therefore, that the decision subsequently made to retain Mr Faka'osi in detention between 28 November and 2 December 1988 was unlawful. His Honour so declared. The challenge to his Honour's order was made on the basis that his Honour did not recognise that he had a discretion under s 16 of the ADJR Act to set aside the decisions under review and that, in the exercise of his discretion, his Honour ought to have set aside the decisions only as from the date of his Honour's judgment, thereby leaving the decisions on foot to that date and thus rendering the detention lawful.

However, his Honour was fully aware of the fact that he had a discretion as to the date from which the subject decision should be set aside and, in exercising that discretion, did so judicially, that is to say, on relevant and proper grounds. His Honour found that the decision for the deportation of Mr Faka'osi was invalid through failure to comply with the rules of natural justice. The ordinary implication was that the decision should be treated as void ab initio and declared to be so or set aside accordingly. See Ridge v Baldwin (1964) AC 40, Wade on Administrative Law, 6th Ed, pp 526-528, de Smith's Judicial Review of Administrative Action, 4th Ed, pp 241-242. I do not say that his Honour was bound by any strict principle of nullity or by earlier authorities distinguishing between void and merely voidable decisions. Section 16 of the ADJR Act overcomes that type of problem. But, in a case where authorities were clear that the decision ordering deportation was a nullity, there was no matter before his Honour which would have justified his Honour in refusing to give effect to that conclusion.

I would dismiss the appeal with costs.